Monday, June 04, 2012

“(T)he erosion of freedom rarely
comes as an all-out frontal assault but rather as a gradual, noxious creeping,
cloaked in secrecy, and glossed over by reassurances of greater security.” –
Senator Robert Byrd

A group of prosecutors in
Pennsylvania is seeking a major expansion of government surveillance
power. They are advocating for House Bill 2400, and we expect its supporters to try to fast-track the bill through
the legislature before it can get a thorough review from lawmakers and the
public. The bill would make about a dozen changes to current law, many of which
seriously undermine Pennsylvanians’ privacy. We’re discussing the worst of them
in a series of posts. This post discusses a proposal to add a notice exception
to the definition of “oral communications.” The new exception would allow
anyone who gives notice of surveillance to record otherwise private
conversations.

Part IV: By reading this blog
post, you have consented to audio surveillance.

One of the
most far-reaching proposals of HB 2400 creates a “notice exception” to the
definition of oral communications. Currently, the wiretap law bans recording most
private oral communications. HB 2400 proposes a new rule that an oral
communication isn’t private if the speaker has notice that it might be
recorded. In other words, as long as
someone has notified you that surveillance may happen, you have no right to
expect that your conversation is private.

This
includes “actual notice,” which means you actually are aware that you may be
recorded. It also includes “constructive notice.” That’s a jargony term meaning,
“it’s written down on something that you were supposed to read.” Like a sign in
the front office of a building, or in the back of the employee handbook. If HB
2400 passes, we can expect to see “you may be under surveillance” signs popping
up all over. And you can expect to be under surveillance whenever you are not
at home, whether you are out in public or not.

The notice
exception makes it easy for anyone to remove any expectation of privacy in
public and private space. Let’s consider a couple examples. An employer could
post a sign about audio surveillance in the front office or in an employee handbook.
Then the employees’ private conversations could be recorded in elevators,
offices, shop floors, and lunch rooms. Don’t criticize the boss, and don’t talk
about unionizing at work.

The
exception would apply in schools as well. The meetings of student groups such
as the Gay-Straight Alliance might be recorded. Or administrators might decide
to listen in on school newspaper meetings or student government meetings to
make sure no one criticizes school policies.

Instead
of the notice exception, the ACLU of Pennsylvania supports a different
definition of “oral communications” that protects privacy rights. We ask the
legislature to define “oral communications” as, “Any oral communication uttered by a person possessing a reasonable
expectation of privacy in such communications.” Our proposal clarifies the
current law rather than changing it significantly. Since 1998, Pennsylvania
Courts have interpreted “oral communications” to cover only situations where
the parties to a conversation had a reasonable expectation of privacy. See Agnew v. Dupler, 553 Pa. 33 (Pa. 1998).
Our proposal would rewrite the current statute to make it crystal clear that a
person’s “reasonable expectation of privacy” should remain the cornerstone of
privacy rights in the wiretap act.

The
“reasonable expectation of privacy” rule protects privacy where HB 2400 would threaten
it. Instead of looking only to whether someone posted notice somewhere, courts
interpreting the “reasonable expectation of privacy” rule look to all the
circumstances surrounding a conversation. So even if the front office had a
sign about audio recording, students might still be able to have a private
conversation in a closed classroom, or employees might still be able to speak
in an otherwise empty elevator without the boss listening.

All of
us—whether as employees, students, or in some other role—should have the right
to hold private conversations from time to time, even if we are not at home. HB
2400, as it is currently written, would make this right a rare one.